Kristian White v. Heather Simai, 2016 HRTO 1260

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristian White

Applicant

-and-

Heather Simai

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 27, 2016

Citation: 2016 HRTO 1260

Indexed As: White v. Simai

1This Decision addresses a request from the respondent that the Application be dismissed under section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Section 34(11) reads as follows:

34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

3The Application was filed on January 15, 2016. The Application referred to two previous Applications and alleges that the present Application was filed because the applicant alleges that the respondent threatened to reprise against the applicant for having filed the previous Applications. The applicant alleges that he has been the subject of “a rash of recent thefts” and suggests that these are related to the alleged reprisal. He further alleges that the respondent made false allegations about him that led to criminal charges in October 2015.

4In the Statement of Claim, the applicant refers to the earlier Applications, and to a mediation session at the Tribunal. He asks the Court to review the earlier Applications and to consider allegations about the mediation session that led to a settlement of one of them. The applicant also refers to the events in October 2015 and alleges that the police asked him about the earlier Applications which, he alleges, shows that he was subjected to harassment in reprisal for having filed the earlier Applications.

5While the Statement of Claim in the civil action provides some more detail than the Application, it appears to me that it is clear that the allegations in the Application are the same as the allegations in the civil action.

6In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at paragraph 6, the Tribunal stated:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

7In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs 10-11, the Tribunal discussed the purpose of section 34(11) and held that a claim need not specifically plead section 46.1 for the section to apply:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

8Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Smith v. Sears Canada, 2010 HRTO 1834, the Tribunal found that section 34(11) may apply to bar an Application even if the Statement of Claim in the civil action does not explicitly refer to the Code:

The determinative question remains whether the applicant did, whether explicitly or implicitly, raise the Code and seek remedies for alleged breaches by way of the civil proceeding. If so, she is clearly barred from bringing an Application to the Tribunal by virtue of the operation of section 34(11). If not, however, then the factual similarity between the two proceedings is not sufficient to dislodge the Tribunal’s jurisdiction over a matter that is otherwise properly brought before it.

9The Tribunal’s approach to the interpretation of s. 34(11) of the Code to extend to civil proceedings commenced after the filing of an Application with this Tribunal has been upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, 2012 ONSC 319 (Div. Ct.).

10According to the applicant’s submissions, the civil action in this case is for “the tort of defamation” and for “unconscionable contract” and that it is therefore different than the claims in the Application.

11While the civil action does not specifically indicate that the applicant is seeking damages under the Code, the Statement of Claim includes the same factual allegations as the Application. It includes a claim for emotional damages which are essentially the same as the damages claimed in the Application.

12I conclude that the present Application is barred by section 34(11) and it is dismissed on that basis. The summary hearing scheduled for November 2, 2016 is canceled.

Decision

13The Application is dismissed under section 34(11) of the Code.